Amicus Curiae Brief — Burlington Northern Railroad v. Brotherhood of Maintenance of Way Employes
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No. 86-39 OV 20 1996
JOSEPH F. SPANIOL, JR.
IN THE CLERK
Supreme Court of the Wuited States
OCTOBER TERM, 1986
RURLINGTON NORTHERN RAILROAD COMPANY,
UNION PACIFIC RAILROAD COMPANY,
MIScOURI PACIFIC RAILROAD COMPANY,
THE ATCi'SON, TOPEKA AND SANTA FE
RAILWAY COMPANY,
BALTIMORE AND OHIO RAILROAD COMPANY,
BALTIMORE AND OHIO CHICAGO TERMINAL COMPANY,
CHESAPEAKE AND OHIO RAILWAY COMPANY,
AND CSX TRANSPORTATION, INC.,
. Petitioners,
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES, et al.,
Respondents.
On Writ of Certievari to the United States
Court of Appeals for the Seventh Circuit
BRIEF OF AMICUS CURIAE
THE NATIONAL RAILWAY LABOR CONFERENCE
WILLIAM J. CURTIN
HARRY A. RISSETTO *
THOMAS E. REINERT, JR.
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-5084
Of Counsel:
MORGAN, LEWIS & BOCKIUS
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-5000 * Counsel of Record
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Whether the Railway Labor Act prohibits a rail un-
ion from threatening or undertaking economic action
against a carrier when the union has not exhausted
the Act’s major dispute resolution procedures with
respect to that carrier.
2. Whether the Railway Labor Act prohibits a rail un-
ion from threatening or undertaking nationwide eco-
nomic action against railroad industry carriers when
the union has not exhausted the Act’s major dispute
resolution procedures in national handling.
(i)
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................ccc.csceecceseeeneees
Se I GO secnersreeveeccccensmnescnnnstnreescevnesesnsiecs
TABLE OF AUTHORITIES. ..000....2.....02..2-..--cscceneeeeeeees
INTEREST OF AMICUS CURIAE ............................--.
SUMMARY OF ARGUMENT ................... seaeniaianmedipinians
ITE <oiiciiicdescniciccsciahinspetegnisinnieiiiiecinntnienndinsstnnnionmmninies
I.
Il.
THE RAILWAY LABOR ACT SHOULD BE
INTERPRETED AND ENFORCED CON-
SISTENTLY WITH ITS POLICIES AND
PROCEDURES TO LIMIT ECONOMIC
IIE distitctictnisnesslieimenensevnssinistieincnaduaninhnainnintas
A. Courts Have Avoided A Literal Standard
Of interpreting The Railway Labor Act....
B. Courts Have Interpreted The Railway Labor
Act As Implicitly Restricting Self-help........
THE RAILWAY LABOR ACT PROHIBITS
A RAIL UNION FROM UNDERTAKING
ECONOMIC ACTION AGAINST A _ CAR-
RIER WHEN THE UNION HAS NOT ExX-
HAUSTED THE ACT’S MAJOR DISPUTE
RESOLUTION PROCEDURES WITH RE-
SPECT TO THAT CARRIER .............................
A. The Labor Relations Structure Of The Rail-
EL a ee EN
B. The BMWE Owed A Duty Under Section
2 First To Petitioners And Other NRLC
Carriers
12
12
iv
TABLE OF CONTENTS—Continued
Page
C. The BMWE’s Secondary Pressure Against
Neutral Carriers Undermines The Rail-
way Labor Act’s Major Dispute Procedures.. 20
D. The Railway Labor Act’s Dispute Resolu-
tion Procedures Are Comprehensive And
Oe iessiiericinternistanenctlinaiaiaitnninininin 23
III. THE RAILWAY LABOR ACT PROHIBITS A
RAIL UNION FROM UNDERTAKING NA-
TIONWIDE ECONOMIC ACTION AGAINST
RAILROAD INDUSTRY CARRIERS WHEN
THE UNION HAS NOT EXHAUSTED THE
ACT’S MAJOR DISPUTE PROCEDURES IN
ER COD enitaneirnsmininttanteniins 26
GTC sceccecsncscnceccnsescnsssssmneisnnesassndaassousesionsnnnteneens 30
Vv
TABLE OF AUTHORITIES
CASES Page
Air Line Pilots Association v. United Air Lines,
os & Be Bs | Renee 9
American Airlines v. Transport Workers, 487
F. Supp. 249 (E.D.N.Y. 1980) ........................... 22
Ashley, Drew & Northern Ry. v. United Transp.
Union, 625 F.2d 1357 (8th Cir. 1980) —............... 25
Brotherhood of Locomotive Engineers v. Balti-
more & O. R. R., 372 U.S. 284 (1963) ................. 10, 21
Brotherhood of Loc. Engr’s v. Missouri-Kansas-
Texas RR., 363 U.S. 528 (1960) ...........02..00000..... 9
Brotherhood of Maintenance of Way Employes
v. Association of American R.R., 639 F. Supp.
220 (D.D.C.), aff'd sub nom. Central Vermont
Ry. v. BMWE, 793 F.2d 1298 (D.C. Cir. 1986) ..passim
Brotherhood of Maintenance of Way Employes
v. Guilford Transp. Inds., slip op. No. 86-1366
RR CS a x
Brotherhood of R.R. Trainmen v. Atlantic Coast
Line R.R., 383 F.2d 225 (D.C. Cir. 1967), cert.
denied, 390 U.S. 1047 (1968) 0.0.0.0... 27, 28
Brotherhood of R.R. Trainmen v. Chicago River
& I. R.R., 368. US. 30 (1967) ......................... 11, 17, 24
Brotherhood of R.R. Trainmen v. Jacksonville
Terminal, 394 U.S. 369 (1969) 0000. 16, 25, 27
Brotherhood of Ry. Clerks v. Florida East Coast
eB FE eeerr eT passim
Burlington Northern R.R. v. BMWE, 793 F.2d
I el passim
Chicago & North Western R.R. vy. United Transp.
Union 402 U.S. 570 (1971) ................................... passim
Consolidated Rail Corp. v. BMWE, slip op. No. 86-
0318T (W.D.N.Y. April 6, 1986), vacated, 792
ities passim
Consolidated Rail Corp. v. Railway Clerks 99
LRRM (BNA) 2607 (W.D.N.Y. 1978), app.
dism’d as moot, 595 F.2d 1708 (2d Cir. 1979). 27
Delaware & Hudson Ry. Co. v. United Transp.
Union, 450 F.2d 603 (D.C. Cir.), cert. denied,
403 U.S. 911 (1971)
vi
TABLE OF AUTHORITIES—Continued
Page
Detroit & Toledo Shore Line R.R. v. United
Transp. Union, 396 U.S. 142 (1969) .................... passim
Electrical Wkrs. Local 761 (IUE) v. NLRB, 366
2 2 ESRC E anne eN Eas SEP eaen 16
Eigin, Joliet & Eastern R.R. v. Burley, 325 U.S.
TE GD wectnretscnsnsncccsinssinnsininsnicimaninvdniviininemenuittaniies 13, 24
Indept. Union of Flight Attendants v. Pan Ameri-
can World Airways, 789 F.2d 139 (2d Cir.
TOTTI 1 os seh ccsssicaheatinn Stel alatetateienignnaenidenshidianiamminmaseses 9
Kroger Co. v. NLRB, 647 F.2d 634 (6th Cir.
TTI c:scseideitenesiatepmesiecinianiatantietansheenesstininnianmimmtemiaieienitentes 16
Local 553, TWU v. Eastern Air Lines, 695 F.2d
SE PERI, CIID sssstcs hrensesnrrnntnnnnsimnicietinniiieanaienethianens 9
Longshoremen v. Allied Int'l Inc., 456 U.S. 212
OR Len eee ener 16
National Airlines v. Air Line Pilots Ass’n, 78 Lab.
Cas. (CCH) § 11361 (S.D. Fla. 1975) ................ 18
NLRB v. Erie Resistor Co., 373 U.S. 221 (1963) .. 10
NLRB v. Teamsters Local 810 (Advance Truck-
ing Co.), 299 F.2d 636 (2d Cir. 1962) ................. 25
New Jersey Transit Rail Operations, 11 NMB 57
TIIIEI csccosndnssiscbsciteieinniedectidaiaasiisebaihibaiaapannsiapadlindemnanes 13
New York Central R.R., 1 NMB 17 (1937) -........... 13
Norfolk and Western Ry. v. BMWE, 795 F.2d
Se Gy Gs I schtivtinesdntindectiiienieivapnisintinteens 3
Richmond, Fredericksburg & Potomac R.R. v.
BMWE, slip op. No. 86-3544 (4th Cir. April 12,
1986), vacated, 795 F.2d 1161 (4th Cir. 1986)... 3,8
Rutland Ry. v. Brotherhood of Locomotive Engi-
neers, 307 F.2d 21 (2d Cir. 1962), cert. denied,
BE eee 19
Sinclair Refining Co. v. Atkinson, 370 U.S. 195
SII sceahicccliic sietecaansebisceniaeeeidietiaiabsciaaiianpemasandianeliiegiiiie 24
Steele v. Louisville & Nashville R.R., 323 U.S.
Tr a Ce a &
Steelworkers v. Warrier & Gulf Navigation Co.,
en I i easenisatbbennie 7
Summit Airlines v. Teamsters, Local 295, 628
2. & 2 2. QQ ee eee 9
vii
TABLE OF AUTHORITIES—Continued
Page
Switchmen’s Union v. Nat’l Med. Bd., 135 F.2d
785 (D.C. Cir.), rev’d on other gnds, 320 U.S.
I A 13, 17, 18
Texas Air—Eastern Acquisition Case, U.S. Dept.
of Trans., Docket No. 43825 ................................- 14
Texas & New Orleans R. R. Co. v. Ry. Clerks, 281
RIES cre a CRA ETC ee 8, 23
Virginian Ry. v. Sys em Federation 40, 300 U.S.
EE ae AY ON I 8
Western Maryland R. R. v. Systems Board, 465
F. Supp. O68 (D. BEG. 1079) ............ceccccenceecececesess 14
Woodwork Mfrs. v. NLRB, 386 U.S. 612 (1966) .. 26
STATUTES
Railway Labor Act, 45 U.S.C. § 151 et seq. (1982) _ passi
see TEN passim
a sniienmead passim
I disci chiiisccnicocesied niisarceemeanioiassenenimestes 9, 24
SI I METI, xs vcserreremneceseseunsscnetnemsennencessasannts 13
Norris-LaGuardia Act, 29 U.S.C. § 101 et seq.
aE. OEE a oR IS eer 2
National Labor Relations Act 29 U.S.C. § 151 et
8 EE a a ae ee ee aT passim
RES EE SEER ae op a ‘as 9
Pe I a cscceemcenremnsenene 8,15
BP I Te EID COD cececcncvecsccceccccncecececcesseoressse 9,15
Re 10, 15
A a ee ee penned 9
MISCELLANEOUS
eS 27
75 Cong. Rec. 5499 (1932) 00 24
House Rep. No. 328, 69th Cong., Ist Sess. (1926). 10, 29
Hearings on Railroad Labor Disputes (H.R. 7180)
before the House Ctee. on Interstate and Fen.
Commerce, 69th Cong., Ist Sess. 91 (1926)... 7
49 National Mediation Board Annual Report
RP Se a ER NT oe ke eT passim
viii
TABLE OF AUTHORITIES—Continued
Page
Executive Order No. 12,557, 51 Fed. Reg. 18:429
(May 20, 1986), 11 Weekly Comp. Pres. Doc.
OR CIID icecrecncctecnsccsentsesensceeseqnevensessoremnncsnancttones 3
Report to the President by Emergency Board No.
Lee passim
Report to the President by Emergency Board No.
ee passim
H. Lustgarden, Principles of R.R. & Airline Labor
0 alateesieneanmcennenecsiiiinneeieiins 27
The Railway Labor Act At Fifty (C. Rhemus ed.
TEI scc:cosnsniahisciatnisansiiannpianicinhetineesinnitiontghesiediadiibensqencmmmenteiiee 27, 29
IN THE
Siuprene Coat of the United States
OCTOBER TERM, 1986
No. 86-39
BURLINGTON NORTHERN RAILROAD COMPANY,
UNION PACIFIC RAILROAD COMPANY,
MISSOURI PACIFIC RAILROAD COMP . NY,
THE ATCHISON, TOPEKA ANL SANTA FE
RAILWAY COMPANY,
BALTIMORE AND OHIO RAILROAD COMPANY,
BALTIMORE AND OHIO CHICAGO TERMINAL COMPANY,
CHESAPEAKE AND OHIO RAILWAY COMPANY,
AND CSX TRANSPORTATION, INC.,
. Petitioners,
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Seventh Circuit
BRIEF OF AMICUS CURIAE
THE NATIONAL RAILWAY LABOR CONFERENCE
INTERESTS OF AMICUS CURIAE
Pursuant to Rule 36 of the Rules of the Supreme
Court,’ the Amicus Curiae, the National Railway Labor
1 Letters of consent from all parties to the filing of this brief
have been filed with the Clerk of this Court.
2
Conference, files this brief in support of petitioners, Bur-
lington Northern Railroad Company, et. al. Amicus
Curiae adopts and supports the arguments of the peti-
tioners that federal courts may, consistent with the
Railway Labor Act? and the Norris-LaGuardia Act,’
enjoin secondary economic action in rail disputes. This
brief supplements petitioners’ argument for reversal of
the decision below,* and focuses exclusively on whether
the Railway Labor Act should be interpreted as prohibit-
ing economic action by a rail union against neutral, sec-
ondary carriers after exhaustion of the Act’s procedures
with respect to a single, primary carrier.
The National Railway Labor Conference (hereinafter
“NRLC” or “Conference”) is the multiemployer repre-
sentative of its member railroads both in national collec-
tive bargaining with unions pursuant to the Railway
Labor Act and in regard to other labor-management
problems that are of concern to the railroads generally.
Most of the nation’s Class I railroads are members of the
Conference and authorize the Conference to represent
their interests in multicarrier, national collective bar-
gaining. The Burlington Northern Railroad Company
and other petitioner carriers are members of the NRLC.
The union action which precipitated this and related liti-
gation, the April 8, 1986, telegram threat of a nation-
wide work stoppage by the President of the Brotherhood
of Maintenance of Way Employes (hereinafter “BMWE”)
to the Association of American Railroads, was directed
towards carrier members of the NRLC.°
2 Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seg. (1982).
°’ Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. (1982).
4 Burlington Northern R. R. v. BMWE, 793 F.2d 795 (7th Cir.
1986).
5 See Brotherhood of Maintenance of Way Employes v. Associa-
tion of American Railroads, 639 F. Supp. 220 (D.D.C.), affirmed
sub nom. Central Vermont Ry. v. BMWE, 793 F.2d 1298 (D.C. Cir.
1986) ; Consolidated Rail Corp. v. BMWE, slip op. No. 86-0318T
3
This case arose originally from a bargaining dispute
between the BMWE and two small railroads, the Maine
Central Railroad (hereinafter “MEC”) and its subsid-
iary, the Portland Terminal Company (hereinafter
“PT”). The BMWE represents those carriers’ mainte-
nance of way employees, and the dispute related to the
rates of pay, rules, and working conditions applicable
to that group of employees. The MEC/PT dispute began
with negotiations in 1984 which, after exhaustion of the
Railway Labor Act major dispute procedures, lead to a
lawful strike by the BMWE against MEC/PT beginning
on March 3, 1986. See Report To The President By
Emergency Board No. 209 (June 20, 1986) (hereinafter
“Report No. 209”). It was the extension of the BMWE-
MEC/PT work stoppage to petitioners, and other NRLC
carriers who are “strangers” to the MEC/PT dispute,
793 F.2d at 798, that gave rise to this litigation.®
(W.D.N.Y. April 6, 1986), vacated, 792 F.2d 303 (2d Cir. 1986) ;
Richmond, Fredericksburg & Potomac R.R. v. BMWE, slip op. No.
86-3544 (4th Cir. April 12, 1986), vacated, 795 F.2d 1161 (4th Cir.
1986); Norfolk and Western Ry. v. BMWE, 795 F.2d 1169 (4th
Cir. 1986).
®*The BMWE’s April 8, 1986 threat of a nationwide work stop-
page never came to full fruition. During early April, 1986, BMWE
conducted picketing and work stoppages against several NRLC
carriers, but those actions were enjoined by several courts prior
to the realization of their full impact. On May 15, 1986, the United
States Court of Appeals for the Second Circuit stayed a district
court injunction applicable to the Consolidated Rail Corporation.
The BMWE promptly struck and/or picketed Conrail at eighty
locations across its rail system. Union agents picketed several
Conrail facilities and, even where there was no picketing, Conrail
employees represented by the BMWE responded to the Union’s call
to pressure Conrail by engaging in work stoppages. See Consoli-
dated Rail Corp. v. BMWE, slip op. No. 86-0318T (W.D.N.Y. April
6, 1986), vacated, 792 F.2d 303 (2d Cir. 1986). As a result of the
Conrail disruption, President Reagan on the following day issued
Executive Order No. 12,577, 51 Fed. Reg. 18,429 (May 20, 1986), 11
Weekly Comp. Pres. Doc. 643 (1986) appointing Presidential
Emergency Board No. 209 to investigate and report on the BMWE’s
dispute with the MEC/PT, pursuant to Section 10 of the Railway
Labor Act, 45 U.S.C. § 160. See Report No. 209.
4
The Conference believes that there are additional con-
siderations relating to NRLC’s interests and the BMWE’s
industry role which were not fully developed by the par-
ties below, but are crucial to this Court’s informed re-
view of the Railway Labor Act issues raised by this
case.
Most significantly, the BMWE represents not only
maintenance of way employees on the MEC/PT, but the
same craft or class of employees on the petitioner car-
riers, and indeed, most of the carriers in the industry.
See 49 National Mediation Board Annual Report at 38
(1983); Report to the President By Emergency Board
No. 211 (August 14, 1986) (hereinafter “Report No.
211”). Concurrently with the BMWE-MEC/PT dispute,
the BMWE and the NRLC, as representative of its mem-
ber carriers, were engaged in “national handling” col-
lective bargaining negotiations. Report No. 211.’
Consistent with industry practice, the same pay and
work rule issues raised by BMWE’s “Section 6 notices”
in the BMWE-MEC/PT dispute were the subject of the
BMWE-NRLC bargaining for maintenance of way em-
ployees employed by the majority of the nation’s rail
carriers. See Report No, 209; Report No. 211; Dela-
ware & Hudson Ry. v. United Transp. Union, 450 F.2d
603, 605 (D.C. Cir.), cert. denied, 403 U.S. 911 (1971).
Historically, the BMWE and MEC/PT have either par-
ticipated in national handling or agreed to be bound by
the terms of national settlements. Report No. 209. In
1984, the BMWE requested that MEC/PT participate in
national handling, but MEC/PT declined to do so. Id.
Thus, the NRLC, as representative of petitioners and
other carriers, was in mediation with the BMWE on
7 Bargaining between the NRLC and BMWE commenced on June
21, 1984; in January 1985, mediation was initiated; the parties
were released by the National Mediation board on June 2, 1986;
on July 15, 1986, the President established Emergency Board No.
211. Report No. 211.
5
national issues parallel to the BMWE-MEC/PT dispute
at the time BMWE threatened and initiated a nation-
wide work stoppage against the NRLC-represented car-
riers.
SUMMARY OF ARGUMENT
Amicus Curiae maintains that the policies and proce-
dures of the Railway Labor Act, when viewed in the
context of railroad industry labor relations, must be
construed as prohibiting a rail union which has ex-
hausted the Act’s procedures with one carrier from
threatening or initiating economic action against other
neutral carriers.
In concluding that secondary economic action is per-
missible under the Railway Labor Act, the court below
interpreted the statute with excessive literalism and
failed to enforce its fundamental obligations and proce-
dures. Historically, the courts have actively developed
the parties’ general obligations and duties under the
Act, and have inferred limitations on the use of economic
self-help based upon the Act’s central purpose of avoid-
ing interruptions to commerce.
Self-help after exhaustion of the major dispute reso-
lution procedures of the Railway Labor Act must be
carrier-specific. Exhaustion of the Act’s procedures gave
the BMWE the legal power to engage in self-help against
the MEC/PT. But the Act should not permit the BMWE
to threaten or initiate work stoppages against other
neutral carriers with whom the BMWE had not ex-
hausted the Act’s procedures. BMWE’s utilization of
economic weapons against NRLC-represented carriers,
while BMWE and NRLC were in national handling medi-
ation, viclates BMWE’s obligations under Section 2 First
and is inherently destructive of the Act’s negotiation and
mediation procedures under Sections 5 and 6.
The BMWE’s tactics and the decision below, by per-
mitting nationwide work stoppages in the absence of
6
nationwide bargaining, fundamentally alter an industry
bargaining structure which has limited national strike
threats to circumstances of multicarrier bargaining in
“national handling.” A union subject to the Railway
Labor Act should be permitted to threaten or initiate a
nationwide work stoppage against various carriers only
if it has engaged in national handling and exhausted
the Act’s procedures vis-a-vis the national multicarrier
group.
ARGUMENT
I. THE RAILWAY LABOR ACT SHOULD BE INTER-
PRETED AND ENFORCED CONSISTENTLY WITH
ITS POLICIES AND PROCEDURES TO LIMIT ECO-
NOMIC SELF-HELP
As a preliminary matter to its argument in chief, the
Amicus Curiae believes that the Court should approach
this case with the traditionally active interpretative ap-
proach the Court has consistently utilized in enforcing
the Railway Labor Act.
A. Courts Have Avoided A Literal Standard Of In-
terpreting The Railway Labor Act
In interpreting the Railway Labor Act as placing no
limitation on a rail union’s use of secondary economic
pressure, the court below fundamentally misconstrued the
role of the federal courts in enforcing the Act. The court
opined that “[t]he Railway Labor Act is a statute estab-
lishing rules, not a statute establishing goals and calling
‘on the judiciary to create the rules.” 793 F.2d at 803.
But, as this Court recognized in Chicago & North West-
ern R.R. v. United Transp. Union, 402 U.S. 570 (1971),
the Railway Labor Act is the paradigm of a statute
articulating’ broad goals and duties, and calling upon
the judiciary to amplify and enforce those duties to en-
sure that the Act’s goals are realized.
The Court in Chicago & N.W.R.R. stated:
7
We have often been confronted with similar ques-
tions in connection with other duties under the Rail-
way Labor Act. Our cases reveal that where the
statutory language and legislative history are un-
clear, the propriety of judicial enforcement turns on
the importance of the duty in the scheme of the Act,
the capacity of the courts to enforce it effectively,
and the necessity for judicial enforcement if the
right of the aggrieved party is not to prove illusory.
402 U.S. at 578. As the Court recognized, this broad
role for judicial interpretation of the Act was intended
by its drafters:
“We believe, and this law has been written upon
the theory, that in the development of the obliga-
tions in industrial relations and the law in regard
thereto, there is more danger in attempting to write
specific provisions and penalties into the law then
there is in writing general duties and obligations
into the law and letting the enforcement of those
duties and obligations develop through the courts in
the way in which the common law has developed in
England and America.”
402 U.S. at 576-7 (citing testimony of union counsel
Donald R. Richberg, Hearings on Railroad Labor Dis-
putes (H.R. 7180) before the House Committee on Inter-
state and Foreign Commerce, 69th Cong., Ist Sess. 91
(1926) ).*
The sixty year history of this Court’s enforcement of
the Railway Labor Act is characterized by judicial in-
® The Railway Labor Act was a collectively-bargained piece of
legislation “ratified by the Congress and the President.” Chicago
& N.W.R.R., 402 U.S. at 576. In interpreting the Railway Labor
Act, the federal courts have been called upon to act analogously
to a labor arbitrator, whose “source of law is not confined to the
express provisions of the contract, as the industrial common law
—the practices of the industry and the shop—is equally a part of
the collective bargaining agreement although not expressed in it.”
Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581-582
(1960).
8
itiative to effectuate the Act’s policies and procedures.
In Texas & N.O.R.R. v. Railway Clerks, 281 U.S. 548
(1930), the Court inferred authority from the Act’s
major and minor dispute procedures for judicial enforce-
ment of the freedom to choose bargaining representa-
tives. The Court in Virginian Ry. v. System Federation
40, 300 U.S. 515 (1937) found a judicially enforceable
duty to negotiate based upon the Act’s representation
proceedings. Similarly, in Steele v. Louisville & Nash-
ville R.R., 323 U.S. 192 (1944), the Court developed a
judicially enforceable duty of fair representation based
upon the Act’s goals and structure. Thus, the petitioners’
argument for an implied restriction on secondary activ-
ity under the Railway Labor Act is completely consistent
with this Court’s traditional exegesis of the Railway
Labor Act based upon its policies and procedures.
The court below, and the other courts of appeals
which have reviewed secondary boycott issues arising
from the BMWE-MEC/PT dispute, also were misled in
their analyses by the express treatment of secondary eco-
nomic action under the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 151 et seg. (1982). In a sim-
plistic approach, the courts have interpreted the absence
of a provision in the Railway Labor Act analogous to
the express prohibition on secondary boycotts contained
in Section 8(b) (4) of the NLRA, 29 U.S.C. § 158(b)
(4), as determinative of the issue whether the RLA re-
stricts secondary economic action. 793 F.2d at 801-802.°
But the federal courts previously have not hesitated to
imply and enforce obligations under the Railway Labor
Act in the absence of statutory language parallel to the
express provisions of the NLRA.
® See Richmond, Fredericksburg & Potomac R.R. v. BMWE, 795
F.2d 1161, 1i1€6 (4th Cir. 1986); Central Vermont Ry. v. BMWE,
793 F.2d 1298, 1303 (D.C. Cir. 1986); Consolidated Rail Corp. v.
BMWE, 792 F.2d 303, 304 (2d Cir. 1986). See also Brotherhood
of Maintenance of Way Employes v. Guilford Transportation In-
dustries, Inc., No. 86-1366, slip op. at 17 (1st Cir. Oct. 28, 1986).
9
For example, there is no express restriction on recog-
nitional picketing under the RLA equivalent to Section
8(b) (7) of the NLRA, 29 U.S.C. § 158(b) (7). None-
theless, courts have enjoined recognitional picketing un-
der the RLA in order to preserve the RLA’s representa-
tional procedures. Summit Airlines v. Teamsters Local
295, 628 F.2d 787 (2d Cir. 1980). Similarly, there is
no express authorization of federal court jurisdiction over
contract breaches under any RLA equivalent to Section
301 of the NLRA, 29 U.S.C. § 185; and, indeed, Section
3 of the RLA, 45 U.S.C. § 153, gives the adjustment
boards exclusive jurisdiction of such disputes. Nonethe-
less, courts have enjoined alleged carrier breaches of
agreements in order to preserve the integrity of both the
major and minor dispute procedures of the RLA. See
Brotherhood of Locomotive Engineers v. Missouri-K.-T.
R.R., 363 U.S. 528 (1960); Detroit & Toledo Shore Line
R.R. v. United Tranp. Union, 396 U.S. 142 (1969);
Local 553, TWU v. Eastern Air Lines, 695 F.2d 668
(2d Cir. 1982)."° The literalism of the decision below
is, thus, uncharacteristic of historical Railway Labor
Act exegesis.
B. Courts Have Interpreted The Railway Labor Act
As Implicitly Restricting Self-help
Most importantly, the courts have not hesitated to
emendate the Act to identify, define and limit judicially
the parties’ implicit rights to self-help. The words of the
Railway Labor Act do not address the parties’ repec-
tive rights to engage in economic self-help. This legisla-
©There is also no express “unfair labor practice” provision
under the RLA equivalent to Section 8(a) of the NLRA, 29 U.S.C.
§ 158(a), but many courts have examined various carrier actions
and applied unfair labor practice theories borrowed from the
NLRA. See Air Line Pilots Ass’n v. United Air Lines, Inc., 802
F.2d 886 (7th Cir. 1986); but see Independent Union of Flight
Attendants v. Pan American World Airways, 789 F.2d 139 (2d
Cir. 1986).
10
tive silence was intentional, because Congress did not
want to suggest that the Act permitted unrestrained ac-
tion after exhaustion of its procedures:
[I]f strikes were in express terms forbidden for a
given period there might be an implication that after
that period strikes to interfere with the passage of
the United States mails and with continuous trans-
portation service might be made legal. In the opin-
ion of the committee, this possible implication should
be avoided.
House Rep. No. 328, 69th Cong., Ist Sess. 5 (1926).
Yet, the legislative history clearly anticipates the pos-
sibility of self-help after exhaustion of the Act’s proce-
dures. Jd. at 4-5. The Court has implied the right of
the parties to use economic self-help after exhaustion of
the Act’s procedure, based upon the Act’s failure to pro-
vide compulsory binding arbitration as a means of set-
tling major disputes. Brotherhood of Locomotive Engi-
neers v. Baltimore & O.R.R., 372 U.S. 284, 290-291
(1963); Railway Clerks v. Florida East Coast Ry., 384
U.S. 238, 244 (1966).
But post-exhaustion self-help under the Railway Labor
Act is not Armageddon. “Were a strike to be the occa-
sion for a carrier to tear up and annul, so to speak, the
entire collective bargaining agreement, labor-management
relations would revert to the jungle.” Railway Clerks v.
Florida East Coast Ry., 384 U.S. at 247 (1966). In-
stead, the Court has “honored” the “spirit of the Railway
Labor Act” by forbidding an employer after exhaustion
of the major dispute procedures to make sweeping
changes in work rules during a strike. Jd. The petitioner
railroads seek a similar judicial limitation on the un-
ion’s right to self-help.
11 The Railway Labor Act in its silence concerning strikes con-
trasts sharply with the National Labor Relations Act, which speci-
fies under Section 13 that employees have a right to strike, except
as expressly limited by the Act. 29 U.S.C. § 163; See NLRB v.
Erie Resistor Co., 373 U.S. 221 (1963).
11
In judicially defining the parties’ use of self-help, the
Court has been guided by the express purposes of the
Railway Labor Act:
(1) To avoid any interruption to commerce or to
the operation of any carrier engaged therein;.. .
(4) to provide for the prompt and orderly settle-
ment of all disputes concerning rates of pay, rules,
or working conditions ....
Section 2, 45 U.S.C. §15la. Navigating on these pole-
stars the Court has consistently limited the parties’ use
of self-help in order to preserve the Act’s policies and
procedures. Despite the lack of express authority in the
RLA, the Court has permitted injunctions precluding
self-help until the parties have exhausted major dispute
collective bargaining procedures, or, even after exhaus-
tion, when a party has failed to bargain in good faith.
Chicago & N.W.R. R. v. United Transp. Union, 402 U.S.
570 (1971). The Act also makes no provision for injunc-
tions requiring adherence to the procedures for the man-
datory adjustment of grievances. Yet, the Court has
authorized injunctions against self-help when the under-
lying minor dispute could be solved by the grievance pro-
cedures specified in the collective bargaining agreement
and the statute. Brotherhood of Railroad Trainmen v.
Chicago River & I.R.R., 353 U.S. 30 (1957).
Amicus Curiae believes that the restriction on second-
ary economic pressure sought by petitioners is justified
by the policies and procedures of the Act in the same
fashion as the limitations upon self-help found in Florida
East Coast, Chicago & N.W.R.R. and Chicago River. A
literal reading of the Railway Labor Act, uninformed
by the Act’s policies, procedures, and bargaining struc-
ture, should not determine this case.
12
II. THE RAILWAY LABOR ACT PROHIBITS A RAIL
UNION FROM UNDERTAKING ECONOMIC AC-
TION AGAINST A CARRIER WHEN THE UNION
HAS NOT EXHAUSTED THE ACT’S MAJOR DIS-
PUTE RESOLUTION PROCEDURE WITH RE-
SPECT TO THAT CARRIER
The decisions of the courts of appeals which have
reviewed the BMWE’s use of work stoppages against
secondary employers in the MEC/PT dispute have taken
a myopic view of the Railway Labor Act and have failed
to consider the bargaining structure of the railroad in-
dustry. In refusing to limit the scope of BMWE’s self-
help against neutral, secondary employers, the courts
have focused exclusively upon the BMWE-MEC/PT rela-
tionship under the Railway Labor Act. Amicus Curiae
maintains that examining BMWE’s economic action from
the perspective of industry-wide bargaining demon-
strates its unlawfulness under the Railway Labor Act.
A. The Labor Relations Structure Of The Railroad
Industry
The issue of the lawfulness of secondary economic
action under the Railway Labor Act must be reviewed
with due consideration of the unique labor relations
structure of the railroad industry.”
12 As Justice Frankfurter so aptly noted:
From the point of view of industrial relations our railroads
are largely a thing apart. The nature and history of the in-
dustry, the experience with unionization of the roads, the con-
centration of authority on both sides of the industry in nego-
tiating collective agreements, the intimacy of relationship
between the leaders of the two parties shaped by a long course
of national, or at least regional, negotiations, the intricate
technical aspects of these agreements and the specialized knowl-
edge for which their interpretation and application call, the
practical interdependence of seemingly separate collective
agreements—these and similar considerations admonish against
mutilating the comprehensive and complicated system govern-
13
The railroad industry is heavily and uniformly union-
ized. The union’s railroads were one of the first indus-
tries to be unionized, and remain, almost a century later,
one of the most thoroughly unionized industries in the
nation. See The Railway Labor Act At Fifty 17-18,
24-26 (C. Rehmus, ed. 1977). The industry’s bargain-
ing structure of traditionally distinct crafts or classes
and systemwide bargaining units has been preserved by
the National Mediation Board. See Szitchmen’s Union
v. National Mediation Board, 135 F.2d 785, 794 (D.C.
Cir.), rev’d on other g’nds, 320 U.S. 297 (1943) ; see also
New Jersey Transit Rail Op., 11 NMB 57 (1983). Main-
tenance of way employees, for example, form a distinct
craft or class. See 49 National Mediation Board Annual
Report at 38 (1983); New York C.R.R., 1 NMB 17
(1937).
This bargaining unit structure has resulted in single
rail unions representing the same groups of employees
on practically all carriers in the industry. The Brother-
hood of Maintenance of Way Employes, for example, rep-
resents maintenance of way employees on 32 of 33 major
carriers. See 49 National Mediation Board Annual Re-
port at 38 (1983). In the 1986 multicarrier, multiunion
bargaining, BMWE represented the employees of some
85 industry carriers. See Report No. 211. The BMWE’s
industry-wide representation is not unique, but rather, is
characteristic of the hegemony of other major rail unions
such as the Brotherhood of Locomotive Engineers, the
United Transportation Union, and the Brotherhood of
Railway, Airline & Steamship Clerks. See 49 National
Mediation Board Annual Report at 38 (1983) .%
ing railroad industrial relations by episodic utilization of in-
apposite judicial remedies.
Elgin, J. & E.R.R. v. Burley, 325 U.S. 711, 751 (1945) (Frank-
furter, J., dissenting).
13 The airline industry, which is also subject to the Railway
Labor Act, 45 U.S.C. § 181 et seq., exhibits similar industry-wide
union dominance in certain crafts or classes. The Air Line Pilots
14
This industry structure gives rail unions a unique abil-
ity to conduct industry-wide work stoppages. A union
such as the BMWE has industry-wide presence which en-
ables it, if it chooses, to utilize a variety of tactics to
accomplish the withdrawal of services by the employees it
represents on the major rail carriers. Further, because
there is a strong tradition in the railroad industry of
honoring the picket lines of unions representing other
crafts, a rai] union can extend a work stoppage beyond
the employees it represents, and impair a carrier’s oper-
ations. Thus, in terms of economic and operational im-
pact upon a carrier, there is no real distinction in the
rail industry between being the target of secondary pick-
ets or the object of a primary economic strike.
The courts which have reviewed the BMWE’s actions
against neutral carriers appear to have incorrectly viewed
picketing and strikes as practically and legally distin-
guishable forms of economic action under the Railway
Labor Act. See Brotherhood of Maintenance of Way
Employees v. Association of American Railroads, 639
F. Supp. at 223-224, 227 n. 20 (D.D.C.), affirmed, 793
F.2d 1298 (D.C. Cir. 1986). The National Labor Rela-
tions Act under Sections 7, 8(b) (4), 8(b) (7), and 13
Association is the primary representative of flight crew members,
and the International Association of Machinists is the dominant
representative of mechanics; other crafts, such as flight attendants,
have more competing or company-specific unions. See 49 National
Mediation Board Annual Report at 40. In the recent Texas Air-
Eastern Acquisition Case, U.S. Department of Transportation,
Docket No. 43825, the International Association of Machinists
stated that in light of the recent BMWE decisions the possibility
of a nationwide disruption of the air transportation system has
been “greatly increased.”
14 See Delaware & Hudson Ry. v. United Transp. Union, 450 F.2d
603, 613 (D.C. Cir.), cert. denied, 403 U.S. 911 (1971); Western
Maryland R.R. v. Systems Board, 465 F. Supp. 963, 975 (D. Md.
1979).
15
does distinguish strikes, picketing and general “concerted
activities”. 29 U.S.C. §§ 157, 158(b) (4), 158(b) (7), 163.
In contrast, the Railway Labor Act takes a more prag-
matic approach and focuses only on the effects of eco-
nomic actions in terms of “any interruption to com-
merce.” 45 U.S.C. §§$15la(1), 152 First (emphasis
added).
In this case, the BMWE’s threat and actions were not
limited to secondary “picketing”: the April 8, 1986 tele-
gram threatened to “shut down the nation’s railroad
system,” by “ask[ing] our members and other railroad
employees to withdraw their services.” And with respect
to Conrail, there is evidence that the BMWE both placed
pickets and issued strike instructions to its members on
the neutral carriers. See supra note 6.
In terms of the BMWE’s bargaining relationships with
industry carriers, and the BMWE’s collective bargaining
goals, there is also no real distinction between picketing
and a strike against neutral carriers. The BMWE, a
national rail union, represents both the neutral carriers’
maintenance of way employees and the MEC/PT em-
ployees. Indeed, the national union capitalized on those
relationships by extending the MEC/PT work stoppage
to its members on the neutral NRLC carriers. While
the BMWE may argue that its primary strike on the
MEC/PT and its secondary economic actions against
petitioners are motivated solely by BMWE concerns on
the MEC/PT, the work stoppages on the neutral carriers
can only embitter the bargaining relationships between
BMWE and the neutral carriers in the same manner as
if they were the targets of a primary strike. The union’s
motives for economic action is also a matter within the
sole evidentiary control of the union. Further, it is im-
possible, in practice, to distinguish union goals between
primary and secondary carriers in an industry where
16
wages, benefits, and to a lesser degree workrules, have
had a national consistency.*®
In this case the BMWit’s apparent goals also have
not been “secondary” in its traditional sense. Secondary
activity has been defined as economic pressure against
a third party with the goal of having the third party
cease doing business or otherwise bring pressure upon
the primary employer. See Local 761, Electrical Work-
ers (IUE) v. NLRB, 366 U.S. 667, 672, 673-674 (1961) ;
Longshoremen v. Allied Int'l, Inc., 456 U.S. 212, 224
(1982); Kroger Co. v. NLRB, 647 F.2d 634, 637 (6th
Cir. 1980). The BMWE maintains that it can under-
take work stoppages against carriers who have effec-
tively no operational interaction with MEC/PT and are
“strangers” to the dispute. 793 F.2d at 798, 799. The
BMWE’s transparent goals in extending the MEC/PT
work stoppage were to precipitate a national rail emer-
gency in order to obtain the appointment of a Presiden-
tial Emergency Board in the MEC/PT dispute and,
ultimately, to affect the outcome of ongoing collective
bargaining on the secondary carriers. See supra note 6.
B. The BMWE Owed A Duty Under Section 2 First
To Petitioners And Other NRLC Carriers
Section 2 First has been termed by this Court as “the
heart of the Railway Labor Act.” Brotherhood of Rail-
road Trainmen v. Jacksonville Terminal, 394 U.S. 369,
377-378 (1969); Chicago & N.W.R.R. v. United Transp.
Union, 402 U.S. 570, 574 (1971). The Section, which
15 This is well illustrated by the parallel] issues between the con-
current BMWE-MEC/PT dispute and the BMWE-NRLC dispute.
Compare Report No. 209 and Report No. 211. One of the principal
recommendations of Emergency Board No. 209 was that the parties
in the BMWE-MEC/PT dispute “should agree to be bound by the
results of the national negotiations involving rates of pay and
health and welfare programs.” Report No. 209.
17
the Court found judicially enforceable in Chicago & N.W.
R.R., provides:
It shall be the duty of all carriers, their officers,
agents, and employees to exert every reasonable ef-
fort to make and maintain agreements concerning
rates of pay, ‘rules, and working conditions, and to
settle all disputes, whether arising out of the appli-
cation of such agreements or otherwise, in order to
avoid any interruption to commerce or to the opera-
tion of any carrier growing out of any dispute be-
tween the carrier and the employees thereof.
45 U.S.C. § 152.
The courts have consistently viewed Section 2 First as
placing an obligation on the parties to Railway Labor
Act collective bargaining relationships to utilize all avail-
able mechanisms to resolve their disputes short of eco-
nomic action."* The BMWE, as representative of peti-
tioners’ and other NRLC carriers’ maintenance of way
employees, is subject to the constraints of Section 2 First
in its bargaining relationship with those carriers.”
16 See Chicago & N.W.R.R. v. United Transp. Union, 402 U.S.
570 (1971) (major dispute procedures); Brotherhood of Railroad
Trainmen v. Chicago River & I1.R.R., 353 U.S. 30 (1957) (minor
dispute procedures) ; Summit Airlines v. Teamsters Local 295, 628
F.2d 787 (2d Cir. 1980) (representational procedures).
17 Two of the courts of appeals apparently have concluded that
the Section 2 First obligation runs to and from only a carrier’s
employees, and not their union representative. See Central Ver-
mont Ry. v. BMWE, 793 F.2d 1298, 1302 n.9 (D.C. Cir. 1986);
Consolidated Rail Corp. v. BMWE, 792 F.2d 303, 304 (2d Cir.
1986). That is plainly erroneous. This Court has never expressed
any doubt that the Section 2 First obligation applies to a union.
Chicago & N.W.R.R., 402 U.S. at 571 (“The substance of the
complaint was that in the negotiations between the parties over
work rules, the Union had failed to perform its obligations under
§2 First of the Railway Labor Act... .”). The Second Circuit
itself has found the Section 2 First obligation applicable to a union
18
The Consolidated Rail Corporation in Consolidated Rail
Corp. v. BMWE, No. 86-0318T (W.D.N.Y. April 6,
1986), vacated, 792 F.2d 303 (2d Cir. 1986), has argued
that Section 2 First obligated the BMWE to utilize the
Act’s Section 5 and 6 procedures of negotiation and medi-
ation prior to undertaking economic actions against Con-
rail and other neutral, secondary carriers. The Second
Circuit rejected this argument, finding that the delay in
the Act’s procedures would effectively preclude timely
secondary activity. 792 F.2d at 304-305." Amicus Curiae
submits that, even assuming arguendo that the Second
Circuit is correct in concluding that the Act’s major dis-
pute procedures are not well-suited to secondary boycott
issues, that does not remove the BMWE’s Section 2 First
obligation to neutral, secondary carriers.
Rather, Amicus Curiae maintains that Section 2 First
places a more absolute restriction on the BMWE’s eco-
nomic actions. Section 2 First creates an enforceable
obligation that a union not interrupt a carrier’s opera-
tions unless and until the Act’s major disput? procedures
have been exhausted. That obligation runs between the
rail union, as representative of the carrier’s employees,
and the specific carrier. If a rail union has not ex-
hausted the Act relative to a specific carrier, or cannot
exhaust the Act because no procedure is well-suited to
the union’s concern or problem, then Section 2 First must
even in the absence of a bargaining relationship. Summit Air
Lines v. Teamsters Local 295, 628 F.2d 787, 790 (2d Cir. 1980).
And the Section 2 First obligation has been found to apply to indi-
vidual union leaders, such as the individual respondents herein.
See, e.g., National Airlines v. Air Line Pilots Ass’n, 78 Lab. Cas.
(CCH) {11,361 (S.D. Fla. 1975). If unions are not subject to
Section 2 First based upon their bargaining relationship with a
carrier, then rail and airline management has been suing the wrong
parties in effectively every action brought by management under
Section 2 First.
18 See also Central Vermont Ry. v. BMWE, 793 F.2d 1298, 1302-
1303 (D.C. Cir. 1986).
19
be interpreted as precluding the union’s use of economic
self-help against that carrier. Any other interpretation
will create a perverse incentive for a union to circum-
vent the Act’s procedures to capitalize on an opportunity
to utilize the leverage of unrestrained economic action.’
This interpretation is firmly rooted in the industry’s
bargaining structure and the role that industry-wide un-
ions such as the BMWE play. The BMWE will main-
tain that in pursuing secondary action against petition-
ers and other NRLC carriers, it has acted only as repre-
sentative of MEC/PT employees. Yet, at the same time,
the BMWE will justify its secondary activity against
neutral carriers because of the “economic self-interest”
of the neutral carriers’ employees it represents and their
“solidarity” with MEC/PT employees. The reality is
that BMWE is capable of waging successful work stop-
pages against neutral, secondary carriers only because of
its bargaining relationships with those carriers. Further,
the BMWE’s pursuit of a nationwide strike is based on
the rail union’s perception of common issues between all
carriers and all maintenance of way employees in the
industry. See supra note 15.
The BMWE has become voluntarily the representative
of neutral carrier employees, and should be subjected in
those relationships to plenary obligations under Section 2
First. If BMWE’s secondary work stoppages are based
in the interests of the neutral carrier employees it repre-
sents, then it must exhaust the Railway Labor Act pro-
cedures with respect to those carriers prior to initiating
a work stoppage against them. If BMWE’s secondary
work stoppages are based solely on interests of the MEC/
That phenomenon is illustrated by rail unions’ repeated at-
tempts to characterize contract interpretation disputes as “major”
in order to avoid the minor dispute procedures of the adjustment
boards and to be free to engage in unenjoinable self-help. See
Rutland Ry. v. Brotherhood of Locomotive Engineers, 307 F.2d
21, 33 (2d Cir. 1962), cert. denied, 372 U.S. 954 (1963).
20
PT employees, and not those of neutral carrier employ-
ees, then Section 2 First should be interpreted as pro-
hibiting secondary work stoppages in order to preclude
the union from exploiting its bargaining relationships
with neutral carriers.
As this Court has recognized, work stoppages can be
inherently destructive of bargaining relationships which
the Railway Labor Act intends to preserve. See Railway
Clerks v. Florida East Coast Ry., 384 U.S. 238 (1966) ;
Detroit & Toledo Shore Line R.R. v. United Transp.
Union, 396 U.S. 142, 147-149 (1969). The Amicus Curiae
submits that the most destructive work stoppages from
both labor relations and interstate commerce perspectives
are ones which a carrier has no ability to resolve. In
the MEC/PT dispute, the BMWE instigated work stop-
pages against neutral carriers for the pure goal of caus-
ing a national crisis. The neutral carriers were power-
less to make concessions that would terminate the
BMWE’s economic pressure. Making a neutral rail car-
rier the target of economic action, and inflicting harm
upon a carrier for reasons extrinsic to any collective
bargaining goal with that carrier, is plainly inconsistent
with Section 2 First. If Section 2 First means anything,
it must mean that a union cannot use a carrier with
whom it has a collective bargaining relationship as a
hostage to bargaining goals elsewhere.
For these reasons, the Conference submits that there
was a firm basis in Section 2 First and Chicago & N.W.
R.R. for enjoining secondary work stoppages by the
BMWE against neutral rail carriers with whom the
BMWE has bargaining relationships.
C. The BMWE’s Secondary Pressure Against Neutral
Carriers Undermines The Railway Labor Act’s
Major Dispute Procedures
The Railway Labor Act under Sections 5 and 6 im-
poses extensive procedures for resolving major disputes.
The Act requires notices of intended changes, negotia-
21
tion conferences, mediation under the auspices of the
National Mediation Board, and possibly Emergency
Board proceedings, prior to the parties’ utilization of
self-help. See Brotherhood of Locomotive Engineers v.
Baltimore & O.R.R., 372 U.S. 284 (1963). As this Court
has recognized, the “almost interminable process” for
resolving major disputes was designed to prevent inter-
ruptions to interstate commerce from rail labor disputes.
Detroit & Toledo Shore Line R. R. v. United Transp.
Union, 396 U.S. 142, 148-149 (1969). Most importantly,
during these major dispute procedures, self-help is clearly
precluded under the Act’s “status quo” provisions. In
Detroit & Toledo Shore Line the Court stated:
The Act’s status quo requirement is central to its
design. Its immediate effect is to prevent the union
from striking and management from doing any-
thing that would justify a strike. In the long run,
delaying the time when the parties can resort to
self-help provides time for tempers to cool, helps
create an atmosphere in which rational bargaining
can occur, and permits the forces of public opinion
to be mobilized in favor of a settlement without a
strike or lockout.
396 U.S. at 150. As this case aptly illustrates, if the
Railway Labor Act does not prohibit economic action
against neutral, secondary employers, then the status quo
obligation has been rendered largely nugatory.
The NRLC was engaged in multicarrier, multiunion
bargaining with the BMWE on behalf of some 85 car-
riers, including the petitioners and aimost all major rail
carriers in the nation, at the time the BMWE initiated
its secondary work stoppages. In April 1986 and until
June 2, 1986, the NRLC and the BMWE were in media-
tion under the auspices of the National Mediation Board
on collective bargaining issues parallel to those in
BMWE’s dispute with the MEC/PT. See Report No. 211.
Under Detroit & Toledo Shore Line it is beyond dis-
pute that at the time of the BMWE’s secondary threats
22
and work stoppages directed towards NRLC carriers, the
status quo requirement of Section 6 precluded the BMWE
from initiating any economic action against the 85
NRLC-represented carriers. Nonetheless, the decision
below held, in effect, that it was lawful for BMWE at
that very time to exert massive economic pressure in
the form of secondary activity against those same neu-
tral carriers.
Amicus Curiae submits that permitting economic ac-
tion, for whatever reason and in whatever manner,
against a carrier during the status quo period of Sec-
tion 6, is inconsistent with and inherently destructive
of the Railway Labor Act’s procedures. BMWE may
maintain that the status quo obligation only applied to
issues relating to “national handling” and not the MEC/
PT dispute. But such a distinction is illusory. A work
stoppage will disrupt the bargaining process no matter
what the union’s motivation or goals. To paraphrase
Detroit & Toledo Shore Line: tempers cannot cool when
a carrier’s operations are shut down, an atmosphere of
rational bargaining no longer exists when a strike is in
effect, and the forces of public opinion cannot be mobil-
ized against a strike that has already occurred. 396 U.S.
at 150.
Further, it will ultimately prove impossible to distin-
guish secondary and primary goals in a work stoppage
during the status quo period. The possibility of pretext
cannot be discounted. By exhausting with respect to one
carrier and engaging in secondary economic activity a
union can prematurely press bargaining goals with the
neutral employer. Or the mere existence of a work stop-
page can be a “flexing of muscle” in anticipation of
future bargaining and an ultimate strike.”
20 See, e.g., American Airlines, Inc. v. Transport Workers Union,
487 F. Supp. 249, 253 (E.D.N.Y. 1980) (ostensible sympathy strike
as “the first step in an effort to obtain ‘the best contract ever
negotiated in the airline industry’ ”’).
23
In short, if economic action is permitted against neu-
tral, secondary carriers under the Railway Labor Act,
then the carefully crafted procedures for resolving major
dic utes can be easily circumvented by rail unions
.. ough premature and pretextual work stoppages.
D. The Railway Labor Act’s Disrute Resolution Pro-
cedures Are Comprehensive And Carrier-Specific
Amicus Curiae does not interpret the Railway Labor
Act as prohibiting secondary economic action only in the
circumstances where a rail union has a bargaining rela-
tionship with a neutral carrier. The Section 2 First
obligation and Section & procedures discussed above sim-
ply illustrate how economic action against neutral, sec-
ondary carriers can be, and in this case is, a plain viola-
tion of the Act. In addition, the Conference believes that
the Railway Labor Act, when viewed in its entirety,
implicitly prohibits economic action against neutral, sec-
ondary carriers.
The primary error of the court below, and other courts
which have reviewed the BMWE’s secondary action, is
that they have viewed the BMWE’s action as “unregu-
lated” under the Railway Labor Act. 793 F.2d at 804.
Amicus Curiae submits that, to the contrary, the Rail-
way Labor Act was intended, and has operated for sixty
years, as a comprehensive scheme for regulating all
economic action in the railroad industry.
This Court has recognized that “the major purpose of
Congress in passing the Railway Labor Act was to pro-
vide a machinery to prevent strikes.” Texas & N.O.R.
R. v. Railway Clerks, 281 U.S. 548, 565 (1930) ; Detroit
& Toledo Shore Line v. United Transp. Union, 396 U.S.
142, 148 (1969). The Act speaks in its general pur-
poses under Section 2 of avoiding “any interruption to
commerce,” and in Section 2 First of reaching “all dis-
putes”, in order to avoid “any interruption to commerce,”
45 U.S.C. §§ 151a(1), 152 First (emphasis added). The
24
intent of the Act was to comprehensively treat railroad
industry labor disputes, with special procedures for ma-
jor disputes, Sections 5, 6, 8, 10; minor or other dis-
putes, Section 3; and representational disputes, Section 2
Ninth. See generally Elgin, J. & E.R.R. v. Burley, 325
U.S. 711, 751 (1945). Indeed, Congress passed the 1934
amendments to the original 1926 Act in order, in part,
to maintain this comprehensiveness and to prevent work
stoppages relating to minor disputes. See Brotherhood of
Railroad Trainmen v. Chicago River & I.R.R., 353 U.S.
30, 35-39 (1957). This history of comprehensive regula-
tion of self-help has been cited by the Court as justifica-
tion for more active judicial intervention under the RLA
than the NLRA. See Sinclair Refining Co. v. Atkinson,
370 U.S. 195, 210-212 (1962) .”
Amicus Curiae submits that, in its comprehensiveness,
the Railway Labor Act deals with the lawfulness of eco-
nomic action against neutral, secondary carriers. Simply
stated, the only circumstances in which the Act permits
self-help by a rail union against a carrier is after ex-
haustion of the Act’s procedure with respect to that car-
rier. The major dispute procedures are by their terms
carrier-specific, and exhaustion with respect to one car-
rier does not under the Act give a rail union a license
to undertake work stoppages against other industry
carriers.
The court below viewed Congress as somehow neglect-
ing to include a secondary boycott provision in the Rail-
21 The comprehensiveness of the Railway Labor Act was also
recognized in the legislative history of the Norris-LaGuardia Act
by that Act’s principal sponsor:
Mr. LaGuardia: We then passed the railroad labor act, and
that takes care of the whole labor situation pertaining to the
railroads. They could not possibly come under this for the
reason that we provided machinery there for settling labor
disputes.
75 Cong. Rec. 5499 (1932).
25
way Labor Act. 793 F.2d at 801-802. But rather, no
secondary boycott provision has ever been necessary in
the Railway Labor Act, because the Act implicitly re-
stricts self-help against a carrier to circumstances where
the major dispute procedures have been exhausted with
that carrier.
There are situations, however, in which a strike
against a primary carrier will have lawful secondary
effects on other carriers. Where both carriers have com-
mon facilities the Act has been intepreted as permitting
a union to strike the primary carrier notwithstanding
its impact on the secondary carrier at such facilities.
See Brotherhood of Railroad Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369 (1969). When a secondary
carrier has integrated its operations with a struck car-
rier or provided special assistance to the primary car-
rier during a strike, then economic action can be per-
mitted against the secondary, non-neutral carrier under
the “substantial alignment” or “ally doctrine” stand-
ards. See Ashley, Drew & Northern Ry. v. United
Transp. Union, 625 F.2d 1357 (8th Cir. 1980) (substan-
tial alignment standard).* See, also, NLRB v. Teamsters
Local 810 (Advance Trucking Co.), 299 F.2d 636 (2d
Cir. 1962) (ally doctrine). These are situations, how-
ever, not of “unregulated” conduct against secondary
carriers but of protection of a union’s right to engage
in primary economic action notwithstanding its limited
effects on secondary carriers.
22 The Conference concurs in petitioners’ argument that Jackson-
ville Terminal addressed only the enjoinability of secondary activ-
ity under state law. To the extent Jacksonville Terminal is inter-
preted as opitiing on the enjoinability of secondary economic action
under the RLA, it should be viewed as a common-situs case limited
to its facts.
*3The Conference submits that the “substantial alignment”
standard which has been developed in the railroad industry under
the Norris-LaGuardia Act would be more appropriately viewed as
based in the procedures and policies of the Railway Labor Act.
26
Amicus Curiae recognizes that the analysis it suggests
will require the federal courts to determine questions of
“neutrality” in order to resolve whether economic action
affecting another carrier is lawful. But the right to
self-help was itself implied by this Court, not express
in the Act, and its delineation is left to the judicial proc-
ees. The crafters of the Act anticipated just such a judi-
cial role in the development of the Railway Labor Act.
Judicially developed limitations on the right to extend
lawful self-help to neutral parties also have been com-
mon under the NLRA. See generally Woodwork Manu-
facturers v. NLRB, 386 U.S. 612, 644-645 (1966).
The railroad industry needs guidance from the Court
concerning the permissible scope of self-help in economic
strikes under the Railway Labor Act. Amicus Curiae
believes it is clear, however, that the type of unre-
strained secondary activity undertaken by the BMWE
is contrary to the policies and procedures of the Act, and
cannot be permitted to recur.
Ill. THE RAILWAY LABOR ACT PROHIBITS A RAIL
UNION FROM UNDERTAKING NATIONWIDE
ECONOMIC ACTION AGAINST RAILROAD IN-
DUSTRY CARRIERS WHEN THE UNION HAS
NOT EXHAUSTED THE ACT’S MAJOR DISPUTE
PROCEDURES IN NATIONAL HANDLING
If, as argued above, the Railway Labor Act prohibits
extending a work stoppage against a single carrier to
another neutral carrier, then a fortiori it prohibits rail
unions from initiating nationwide work stoppages based
upon exhaustion of the Act’s procedures with a single
earrier. The BMWE maintains that it has the power
to initiate a nationwide work stoppage, through sec-
ondary economic action, in effectively any major dispute.
Amicus Curiae submits that if the BMWE’s position is
upheld, then it will, through the proliferation of work
stoppages, destroy the bargaining structure that has
existed in the railroad industry for sixty years.
er nna mama
27
The BMWE’s use of secondary work stoppages to es-
calate a local dispute into a nationwide rail emergency
is unprecedented. In the history of the Railway Labor
Act there have been only three widely-known labor dis-
putes in which rail unions have undertaken any second-
ary economic activity: the multiunion Florida East Coast
Railway dispute of the early 1960s, see Brotherhood of
Railroad Trainmen v. Jacksonville Terminal, 394 U.S.
369 (1969); the 1978 dispute between the Norfolk and
Western Railway and the Brotherhood of Railway
and Airline Clerks, see Consolidated Rail Corp. v. Rail-
way Clerks, 99 LRRM (BNA) 2607 (W.D.N.Y. 1978)
app. dism’d as moot, 595 F.2d 1708 (2d Cir. 1979); and
the 1986 dispute involving the MEC/PT and the BMWE.
Prior to the MEC/PT dispute, the only threat of a
nationwide work stoppage in the railroad industry had
arisen in “national handling.” The dominant bargaining
structure in the railroad industry is one of multicarrier,
national bargaining on wage, benefit, and certain work-
rule issues, and local bargaining on remaining issues.
See Brotherhood of Railroad Trainmen v. Atlantic Coast
Line, 383 F.2d 225, 228 (D.C. Cir. 1967), cert, denied,
390 U.S. 1047 (1968); Report No. 211. The nation’s
railroad carriers have been faced with national strikes
or the threat of national strikes caused by a breakdown
in national handling in 1941, 1948, 1946, 1948, 1950,
1962, 1967, 1970, 1971, and 1982. See 128 Cong. Ree.
H7382-83 (daily ed. September 22, 1982) (statement of
Rep. Broyhill); H. Lustgarden, Principles of Railroad
and Airline Labor Law 91-96 (1984); and The Railway
Labor Act At Fifty 156-76 (C. Rehmus, ed. 1977).
Therefore, the current dispute between the BMWE and
MEC/PT is unique: it is the first local dispute that,
through secondary economic action against neutral car-
riers, has threatened to precipitate a nationwide work
stoppage.
Thus, historically, self-help has been coterminous with
the scope of bargaining. In Delaware & Hudson Ry. v.
United Transp. Union, 450 F.2d 603 (D.C. Cir.), cert.
28
denied, 403 U.S. 911 (1971), the Court considered rail
unions’ use of selective strikes after exhaustion in na-
tional handling disputes. The Court concluded that rail
unions which engage in national handling are not obli-
gated to conduct nationwide strikes, but could elect to
conduct work stoppages against only select carriers.
That result is based on the fact that the union had,
through national handling, exhausted the Act with each
carrier.
But the converse cannot be permitted: a rail union
cannot undertake a nationwide work stoppage without
national handling and after exhausting the Act with
only one carrier. To hold otherwise would ignore the
mandate of the Section 6 procedures.* Further, under
the reasoning of Brotherhood of Railroad Trainmen v.
Atlantic Coast Line, 383 F.2d 225, 228 (D.C. Cir. 1967),
cert. denied, 390 U.S. 1047 (1968), BMWE’s unprece-
dented use of nationwide work stoppages constitutes an
attempt to unlawfully modify the railroad industry’s
bargaining structure in violation of the union’s obliga-
tion under Section 2 First.”
Permitting the BMWE’s nationwide use of secondary
economic action will have dramatic effect on rail indus-
24 If the BMWE could initiate a nationwide work stoppage after
exhausting with respect to MEC/PT, then under the rationale of
Delaware & Hudson the NRLC carriers should be able to initiate
a nationwide lockout against the BMWE, notwithstanding the lack
of exhaustion of the Act’s procedures in national handling. 450
F.2d at 614-615. Any other result would destroy the mutuality of
self-help weapons which has been characteristic of collective bar-
gaining under the Railway Labor Act.
25In Atlantic Coast Line, the court concluded that multicarrier
bargaining is lawful, and sometimes obligatory under the Railway
Labor Act. 383 F.2d at 229. The approach of Atlantic Coast Line
was to imply a duty under Section 2 First for parties in rail dis-
putes to maintain the national bargaining structure. Whatever
the contours of such a duty, the BMWE clearly has breached it
and attempted to undermine the national bargaining structure by
threatening and initiating nationwide economic action outside
national handling.
29
try bargaining. There are an estimated 1000 railroad
industry collective bargaining agreements involved in
major disputes annually. See The Railway Labor Act At
Fifty 246 (C. Rehmus ed. 1977) 246. Each of these
major disputes can now become an occasion for a geo
graphically broad, and potentially nationwide, work stop-
page threat.
The decision below, if upheld, can only lead to an es-
calation and proliferation of work stoppages and inter-
ruptions to commerce in the rail industry. There have
been only 211 Emergency Boards appointed by Presidents
pursuant to Section 10 in the sixty years of Railway
Labor Act history.** The potential proliferation of rail
industry strike threats could require the appointment of
as many Emergency Boards in the next six years, as has
been required in the last sixty.
For sixty years rail labor and management have un-
derstood the Railway Labor Act’s restraints and the
rules for collective bargaining and economic self-help.
The decisions of the courts of appeals permitting sec-
ondary work stoppages in the BMWE-MEC/PT dispute
have dramatically changed the rules.
Amicus Curiae requests the Court to restore and pre-
serve the traditional bargaining structure in the rail-
road industry. The Railway Labor Act has been an ef-
fective statute that has met its stated purposes and
avoided interruptions to interstate commerce and facil-
itated the resolution of labor disputes for sixty years.
This Court should not permit the unrestrained tactics
of one rail union, and the uninformed and literal inter-
pretations of the Act by several courts, to result in dra-
matic and destabilizing changes in the Railway Labor
Act’s application and enforcement.
26 The Railway Labor Act’s drafters anticipated the “it should
be seldom, if ever, necessary for the President to exercise the
power conferred upon him to appoint an emergency board.” House
Report No. 328, 69th Cong. Ist Sess. 4 (1926).
30
CONCLUSION
For the foregoing reasons, Amicus Curiae National
Railway Labor Conference urges that the Court reverse
the decision below.
Respectfully submitted,
WILLIAM J. CURTIN
HARRY A. RISSETTO *
THOMAS E. REINERT, JR.
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-5084
Of Counsel:
MORGAN, LEWIS & BOCKIUS
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-5000 * Counsel of Record
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